from the neigh dept

Walmart. Just saying the company's name is usually enough to evoke unbidden brain-sounds of terrifying organ music and images of pitchfork-wielding devil-imps. But, hey, it's a large business that's been around for quite a while, so I guess it's doing alright. It seems to me that somebody might want to call a meeting with the Walmart legal brain trust, because the company's campaign against a silly and simple parody website isn't achieving much of anything at all, and is in fact Streisanding the parody site into national views.

This story starts back in 2012, when ICANN saw fit to hold a firesale on domain extensions. Buying them up was all the rage for reasons unfathomable to this author. Still, that was the impetus for how we arrived at Walmart going after a site with a .horse extension.

That explains why, for the mere price of $29, you can now purchase a .horse domain name, if you want to do such a thing. "With .HORSE, there are no hurdles between equine enthusiasts on the Internet," says United Domains. "Giddy up and register .HORSE today!" It doesn't seem like too many people have been receptive to this pun-based sales pitch, but a 34-year-old named Jeph Jacques saw the opportunity for what he calls an "art project."

"I thought, 'Alright I'm gonna buy this and do something stupid with it and see what happens," he told me. And readers, he did just that.

This grand art project? Buying up the domain www.walmart.horse, slapping a picture of the front of a Walmart store with a, you guessed it, horse superimposed over the top, and declaring the whole thing a monumental artistic success. Seriously, this is the only thing at the website if you go there.

Monet it might not be, but the image is suddenly competing with the likes of famous artists for attention and views thanks to Walmart freaking the hell out about it. In its infamous wisdom, Walmart and its crackerjack legal team have demanded that the whole shebang be taken down, claiming infringement of trademark. The C&D letter Walmart helpfully sent along suggested that Jacques' website would confuse customers into thinking that Walmart, who is not in either the business of horses nor in the business of having a sense of humor, might have some affiliation to walmart.horse. Interestingly, the letter targets the domain name, rather than the image on the site itself. I'm not personally aware of any infringement claim on domain name being refuted by the actual extension used, but this would seem to be a ripe candidate for that argument, given that Walmart is not in the horse business.

But this really shouldn't even get that far, given the whole purpose of the site itself and the artistic nature of the creator.

Jacques argues that his site is "an obvious parody and therefore falls under fair use." He also told Walmart in his response that he'd be happy to put a disclaimer on his site to let visitors know he is not actually affiliated with the Waltons. And although he doesn't want to bow to the company just yet, he says he's already proved his original hypothesis: that corporations spend an absurd amount of time policing their trademarks.

Point proven, I suppose. Meanwhile, a tiny joke site has been Streisanded into the national conversation because Walmart just couldn't resist.

from the windsocks dept

Update: We've just noticed that we originally named Walmart in this story when it should be Kmart. We've removed the instances of Walmart and deeply regret the error. Also, it should be noted that Kmart Australia and Target Australia are divisions of Wesfarmers Limited and not related to the US corporations with similar names.

As you may have heard if you follow gaming news, the next-gen console version of Grand Theft Auto 5 release in Australia hit a bit of snag this past week. Now, let's start this off by noting that it was only recently that the government of Australia finally agreed to treat its citizens like adults and allow the kind of video games we enjoy in the States to even be sold in the land down under. It came along with a strict ratings system, of course, but at least these games were finally available for purchase. It was a victory for speech and art.

It's a game that encourages players to murder women for entertainment. The incentive is to commit sexual violence against women, then abuse or kill them to proceed or get 'health' points.

As anyone who has played the game, as I have, can tell you, this is only half true. Or, actually, perhaps less than half, because all the same violence, sexual misanthropy, and cruelty applies at least to the men in the game as well, and I'm pretty sure I remember smacking around some wildlife during my foray into the game as well. The point of GTA5 isn't to demean women; it's to demean everyone and everything. The whole thing is a farce for violence and cruelty. That's its very point. But, to understand the plea of the petition, you have to understand who is issuing it.

We have firsthand experience of this kind of sexual violence. It haunts us, and we've been trying to rebuild our lives ever since. Just knowing that women are being portrayed as deserving to be sexually used by men and potentially murdered for sport and pleasure – to see this violence that we lived through turned into a form of entertainments is sickening and causes us great pain and harm.

Let's be clear about two things. The first is that any real life abuse of women, sexual or otherwise, is a horrific thing and should not be tolerated in any fashion anywhere. It's horrible and it breaks my heart knowing that survivors of such abuse must slog through life on a daily basis overcoming the abuse every step of the way. The second thing we must be absolutely clear on is that for anyone that values free speech, be it government or a corporate entity, the fact that these women issuing their petition are abuse survivors doesn't matter even a little bit. Free speech and artistic expression don't simply get to be limited just because some people may be emotionally hurt by it.

"We've been speaking to many customers over recent days about the game, and there is a significant level of concern about the game's content," [Target's GM of Corporate Affairs] Mr Cooper said. "We've also had customer feedback in support of us selling the game, and we respect their perspective on the issue. However, we feel the decision to stop selling GTA5 is in line with the majority view of our customers."

then they must also explain why this decision over a forever-controversial gaming franchise is only coming upon the re-release of the game, which originally came out a year ago, and how they can also take the following stance.

Mr Cooper said Target would continue to sell other R-rated DVDs and games.

"While these products often contain imagery that some customers find offensive, in the vast majority of cases, we believe they are appropriate products for us to sell to adult customers.

Because the first quote from Mr. Cooper obviates his company's need to take such a stance. All he and Target must do, to remain consistent, is constantly follow the demands of whichever group is shouting the loudest. Because, given that we're talking about one of the best-selling videogames in the history of the medium, that line about Target listening to the majority of consumers is a big bucket of bullshit. And, of course, Target and Kmart will happily sell the game elsewhere in the world, and make gobs of money off of it, while the petitioners updated their petition with "Thank you Target/Kmart" posts.

from the can't-take-the-heat dept

It's no secret that big companies, especially the giant multinationals, often have very advanced corporate espionage teams (sometimes staffed by former government spooks). The practices can sometimes be extreme and problematic, like when HP used its corporate espionage team to spy on board members and journalists. However, it seems that with the rise of consumer interest groups and very effective activists, many of these giant companies are using their corporate espionage team to spy on those non-profits and activists instead.

Many of the world’s largest corporations and their trade associations — including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald’s, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON – have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers.

Many different types of nonprofit organizations have been targeted with corporate espionage, including environmental, anti-war, public interest, consumer, food safety, pesticide reform, nursing home reform, gun control, social justice, animal rights and arms control groups.

Corporations and their trade associations have been linked to a wide variety of espionage tactics against nonprofit organizations. The most prevalent tactic appears to be infiltration by posing a volunteer or journalist, to obtain information from a nonprofit. But corporations have been linked to many other human, physical and electronic espionage tactics against nonprofits. Many of these tactics are either highly unethical or illegal.

The full report includes plenty of examples, including the famous HBGary Federal/Hunton & Williams/Bank of America attempt to infiltrate Anonymous (and Wikileaks). It also includes stories about Stratfor, Monstanto and others. There was one example in there that I was unaware of, involving the giant pharmaceutical lobbying group PhRMA trying to spy on Jamie Love and Knowledge Ecology International. Love is a friend and KEI has done amazing work in informing the world about dangerous efforts by PhRMA and others to use international trade agreements to push through rules and laws that harm the public around both copyright and patent issues. So, perhaps it's not a surprise that they'd spy on him, but it's still quite troubling. The same report notes that a bunch of others, including Microsoft, hired another company closely associated with former IP czar Victoria Espinel to try to spy on Love and KEI:

Shortly after the passage of the Affordable Care Act, Love says he received a visit in his
offices from a man who said he was recently let go from his job at Pharmaceutical Research
and Manufacturers of America (PhRMA). “He said his job involved monitoring what I was
doing, every day.” Love said. “He told me that PhRMA had hired a private investigator to
investigate us, from the West Coast.” Separately, from 2007 to 2008, Love says that PhRMA
and some companies in the copyright sector funded efforts to investigate the sources of
funding for NGOs working on intellectual property issues, and to press those foundations to
end their support of consumer advocacy.

Around 2008 or 2009, General Electric, Microsoft, Pfizer and other firms funded an effort
by the National Foreign Trade Council (NFTC) to provide intelligence on NGOs working on
intellectual property issues. Love says, “They approached someone we knew, with a
proposal to provide information on Knowledge Ecology International and other NGOs
working on intellectual property issues, as part of a program to counter NGO advocacy
efforts on behalf of consumers.” Eventually, Love says, the NFTC contracted with the
Romulus Global Issues Management, an “international policy consultancy” that advises
“several members of the Fortune 100.” The managing partner of Romulus is John Stubbs,
whose wife is Victoria A. Espinel, a former Romulus employee. Espinel was U.S. Intellectual
Property Enforcement Coordinator (IP czar) for the Obama administration, and is currently
the CEO and President of the Business Software Alliance (BSA).

This is really playing dirty. While these companies may not appreciate what public interest groups like KEI do, digging into their activities and spying on them seems to go way beyond reasonable.

from the urls-we-dig-up dept

After the dot-com bust, Webvan was often cited as one of the biggest flops -- throwing way too much money at a venture that had not proven its business model at all. But grocery delivery services still have some potential to change the way people shop for food, and Webvan itself isn't quite dead. A growing number of grocery stores (from Walmart, Safeway, Netgrocer, Peapod, etc) are expanding home delivery services. Here are just a few interesting stories about having groceries delivered to your door.

from the leveraging-the-customer-base dept

Having just seen cases where legacy players have felt threatened by more innovative startups that take advantage of more distributed "peer-production" rather than top-down centralized systems of old, it's interesting to see a counter example. Apparently, Wal-Mart is considering a plan in which it tries to get in-store shoppers to help deliver packages to online buyers.

"I see a path to where this is crowd-sourced," Joel Anderson, chief executive of Walmart.com in the United States, said in a recent interview with Reuters.

Wal-Mart has millions of customers visiting its stores each week. Some of these shoppers could tell the retailer where they live and sign up to drop off packages for online customers who live on their route back home, Anderson explained.

Wal-Mart would offer a discount on the customers' shopping bill, effectively covering the cost of their gas in return for the delivery of packages, he added.

The company admits that it's just brainstorming the idea at this point, but it's always interesting to see big established companies recognizing that others have been disrupting parts of their core business, and rather than freak out about it, try to take the disruption even further. Of course, this might serve to disrupt other legacy providers, such as UPS and FedEx. Hopefully they won't freak out about it, but who wouldn't be surprised to start seeing stories raising moral panics about how "dangerous" this new plan will be since the drivers won't be wearing uniforms any more?

from the they-won't-give-up dept

We've been writing about the patent troll Eolas for about a decade at this point. It's a trolling operation connected to the University of California, and used to take some ridiculously broad patents and try to shake down companies who actually innovated and did incredibly obvious things on the internet. Eolas' various lawsuits had gone back and forth over the years, and finally, earlier this year, a jury in East Texas (surprisingly) invalidated some of the key patents.

This summer, the judge in the case agreed that the key patents were invalid. Eolas had ridiculously tried to argue that the fact that some other companies had previously licensed the patents should have been shared with the jury to prove the "validity" of the patents. Of course, that's ridiculous on its face as trolls often convince companies to license bogus patents because it's cheaper to settle and license than to fight a bad patent lawsuit (even if you win). Of course, the judge blasted Eolas over this desire... because earlier in the case, Eolas had specifically argued that the jury shouldn't be allowed to know of Eolas' previous "business success or failure." Basically, Eolas didn't want the jury to know it was a troll without any real business. However, as the judge realized, Eolas can't hide that bit of info and then want the jury to have this other bit of info from its past.

Thus, for all intents and purposes it seemed that those two key patents -- 5,838,906 and 7,599,985 -- were effectively dead.

What's really amazing is that this scorched earth, anti-innovation effort hasn't created more backlash for the University of California, and Berkeley in particular, given its proximity to Silicon Valley. You'd think that alums of the University who work at the various innovative tech companies that keep getting sued would speak out against their alma mater. It's pretty sad to see the University of California trying to set up a tollbooth on innovation by using such ridiculous patents.

from the because-what-could-possibly-go-wrong dept

Ah, the internet. Also: ah, social media. Powerful tools, which in the right hands, can turn unknowns into legends and overstepping entities into Wikipedia entries. However, in the fumbling hands of mega-corporations, these same tools become about as unwieldy as a screwdriver being used to hammer in nails. By a bear.

When these tools are put to "use" in amateurish ways, there's always the chance that they will be re-purposed for the amusement of internet natives, who know exactly how to turn these primitive tools into weapons of mass destruction/hilarity. Anyone remember Time Magazines' ill-fated effort to crowdsource the Most Influential in the World? Long story short: thanks to a combination of Time Mag's incompetence and No One's Personal Army suddenly cohering into one man's personal army, 4chan's moot ended up topping the list of names.

Enter Boston Phoenix writer David Thorpe, a man so put off by celebrity marketing stunts that he rallied Web troops to"Help us help Wal-Mart exile Pitbull to Alaska.""As of now, the Kodiak Walmart has over 22,000 new 'likes' on Facebook, putting it far ahead of any other Walmart in the nation - far ahead of Kodiak's actual population, in fact," Thorpe wrote.

By Pitbull's deadline, more than 70,000 users had liked the store, located on a southern isle of the Frontier State with a population of about 6,200.

To his credit, Pitbull has taken this all in stride, including tweeting about purchasing bear repellent and putting together a video explaining how he would "go anywhere for his fans." To top it all off, he invited Thorpe along for the promotional visit.

In an email to The Associated Press, Thorpe said it's "very likely" he'll be in Kodiak. Thorpe said he had to "raise the funds to get to Kodiak on my own, since Pitbull's invitation doesn't include actually getting me there."

Thorpe said he doesn't really have anything against Pitbull, and instead saw this as a way "to disrupt a corporate social media campaign, since they really set themselves up for it."

Thorpe's only regret seems to be that Walmart will somehow spin his prank into a social media "win" for the company, something he deems to be "gross." And in a way, it is a win for Wal-Mart, albeit one it scored without lifting a finger. Thousands saw its Facebook pages and thousands more are watching Pitbull's promo spot. And now both Pitbull and Thorpe are off to a destination best known for being way the hell away from anything else... and being home to Walmart store #2711.

from the congressional-battle dept

For years, we've written about the back and forth in various attempts by states to force Amazon to collect sales tax for purchases in states where it doesn't have a presence (or, well, claims it doesn't have a presence). Existing law says that states have no right to force out of state businesses to collect sales tax for transactions in states in which they have no presence. This rule came out of questions concerning the requirements on catalog retailers, but easily carried over to online retailers. For years, two main groups have been very upset about these rules: brick-and-mortar retailers and state governments. The brick and mortar retailers, of course, don't like having to compete with retailers who don't have to charge sales tax, since it puts them at a disadvantage. State governments hate it, of course, because they want more tax revenue anywhere they can find it (even if it harms their constituents).

Of course, there are some good reasons for not forcing out-of-state retailers to collect sales tax in states where they have no presence. There's the general question of the taxing authority of a state to reach cross borders to get a sales tax, for example. Related to this is the massive complication in collecting such a tax. There are so many different local tax rules, requiring any single entity to understand them all seems like a complete compliance nightmare. Separately, there's a question of the purpose behind such a tax. Generally speaking, a sales tax is supposed to cover the public infrastructure that a retailer uses -- e.g., the streets and clean downtown area that make it easy for customers to come to the store. But with the internet, the retailers aren't really getting the benefit of all of that, so why should they be taxed for it? You can argue that they still get some of the benefits in the roads/infrastructure used to deliver the goods, but that seems like a much more limited benefit. Finally, there's a more recent argument: we want to encourage growth in the internet sector, because it creates wonderful efficiencies and positive externalities that we should encourage. The brick-and-mortar folks really hate that one.

Anyway, for years there have been a series of fights and attempts to "deal" with this -- mostly pushed by the brick and mortar guys. Amazon seems resolved to accept having to collect sales tax, but has pushed for rules to simplify such taxes across borders to avoid the compliance nightmare. Unfortunately, it looks like the brick-and-mortar guys may be getting their wish with a new bill that will make it easier for states to force out-of-state retailers to pay up... and without many of the safeguards or requirements for simplified/standardized rules across states. While Amazon has suggested it might be okay with this, it could be a massive pain for any smaller retailer. In an age of micro-retailers -- think the musician selling products off his or her own website -- having to comply with every states' tax laws is going to be huge pain.

Thankfully, it appears there's at least some opposition to this. Senators Ron Wyden and Kelly Ayotte are trying to pre-empt the legislative effort, by getting a resolution through that would say that the Senate won't pass "burdensome or unfair" taxes on internet retailers. The resolution points out that such out-of-state tax requirements could become a massive burden on smaller players, and given today's unemployment situation, it seems like the wrong time to put in place such taxes:

Whereas any Federal legislation that would upset the free and fair Internet marketplace and allow State governments to impose new, onerous and burdensome sales tax-collecting schemes on out-of-State, Internet-enabled small businesses would adversely impact hundreds of thousands of jobs, reduce consumer choice, and impede the growth and development of interstate commerce; and

Whereas at a time when national unemployment numbers are high and businesses across the country are struggling to keep their doors open, the Federal Government should promote pro-growth and pro-business policies instead of enacting legislation that extracts additional taxes from our Nation’s Internet-enabled businesses

For a while now, it's seemed like such taxes were going to be unavoidable, even as they could end up creating significant problems for small businesses and individuals who sell items directly. Hopefully this small bit of opposition helps those on the other side think twice about the unintended consequences of a massive new tax regime for small businesses online.

from the trolly-trolly-trolly-troll dept

For years, Nathan Mhyrvold's Intellectual Ventures tried to avoid the "patent troll" label, in part by not filing any lawsuits. Boy, has that changed. A few months ago it filed its first three lawsuits, against a bunch of tech companies, and now it's gone right back to court to sue a bunch more, including Dell, HP, Asus, Acer, Best Buy and Wal-Mart. Of course, it's all a big shakedown scheme. To IV, you're either "with them" (which means holding your nose and paying upwards of $100 million for a blanket license) or "against them" (which means they'll sue you). It's not hard to see why many people seem to feel that this is all just a giant shakedown racket.

from the that's-not-how-the-law-works... dept

While this case involves one of the many ridiculous lawsuits filed by individuals demanding insane sums of money from companies for no good reasons, there are some good points in here (also, like many of these lawsuits, it involves a plaintiff who has history of filing lawsuits). Apparently, a guy by the name of David Stebbins sued Walmart. To understand the basis of the lawsuit, you have to understand that he sent various companies a link to a "contract" on his MySpace page, which he claims presents a binding contract (if you're particularly risk averse, you may want to avoid clicking on that link, though it's difficult to believe any such contract is valid). Here are some snippets from the faux contract:

My name is David Anthony Stebbins, and I live in Harrison, AR. I am sending a link to this webpage to various companies to put you on notice: If you contact me in any way, shape, or form, you hereby acknowledge that you have read, understand, and agree to be legally bound by the terms below.

[...]

This will also take effect if I attempt to contact you, and, upon hearing my name, you do not cease communications with me on the spot.

[...]
You hereby agree to allow me to use, distribute, and sell the rights to your name, physical likeness, and any intellectual property that you may own, throughout the universe, for no fee, for all eternity.

You hereby agree to not request, nor accept any offer for, any third party to remove any material that I use that you feel that you own the copyright to.

You hereby agree that, for now and for all eternity, in the event that I ask you a question, you must answer it promptly, accurately, and truthfully.

You hereby agree to never

Interrupt me when I am speaking, for all eternity.

Hang up on me in any phone call, for all eternity.

Block my attempts to communicate with you, for any reason, for all eternity.

Ask me a question that I have previously answered, for all eternity.

Demonstrate any rudeness, annoyance, or disrespect, however petty, against me, for all eternity.

Accuse me of lying, or any variation thereof, for all eternity.

It goes on along those lines. Anyway, he sent the email to Walmart with the link to this contract. Walmart customer care sent back a standard, boilerplate reply suggesting he contact a different department, which Stebbins used to claim the contract had been entered into (in combination with him also buying a gallon of milk -- don't ask). He sent a letter to Walmart demanding arbitration to settle their "legal dispute." When Walmart failed to agree to arbitration within 24-hours, he claims that he wins and should get $600 billion (with a b):

"since Wal–Mart did not accept the arbitration invitation within twenty-four hours of receiving it, he automatically wins regardless of the merits of the case and is entitled to an award of six-hundred billion dollars."

Plaintiff maintains Wal–Mart accepted the contract by its “act” of replying to his e-mail....The e-mails from Plaintiff are self-serving documents that did not form the basis for any conduct or performance on Wal–Mart's part....In this case, Wal–Mart performed no act. It merely replied to two e-mails by directing the Plaintiff to the correct department. It performed no service and Plaintiff made no promise.

Obviously, this particular case is something of a joke, but given how often people seek to claim that a contract has been entered into on dubious terms (such as replying to an email), perhaps a bit of reasonable caselaw comes out of this...